Discussion of current legal issues

John Przybyla, 73, of Friendship, Wisconsin, was stopped for a broken tail light and erratic driving on Oct. 12 by a deputy who then smelled alcohol on his breath and saw that is eyes were blood shot. The deputy asked Przybyla how much he had had to drink. Przybyla replied that he had not been drinking and instead had eaten beer-battered fish at a fish fry, according to police reports. Przybyla was arrested after he failed a field sobriety test and a breath test showed he had been drinking. He was charged with drunk driving. Does Mr. Przybyla’s claim to law enforcement have any merit? Incredible as it may seem, possibly. He would need to be tested for gut fermentation syndrome or auto-brewery syndrome. The underlying mechanism is thought to be an overgrowth of yeast in the gut whereby the yeast ferments carbohydrates into ethanol. According to gastroenterologist Dr. Justin McCarthy a person can experience a set of circumstances that allows alcohol to be fermented within his/her own stomach and intestines. Scott, Medical Oddities Part 2: You can brew beer in your digestive tract, Today I Found Out, http://www.todayifoundout.com/index.php/2013/10/can-brew-beer-stomach/ In all of the known cases, some type of yeast (Saccharomyces cerecisiae, or brewer’s yeast) ferments the sugars coming from carbohydrates or any sugary foods into ethanol (ethyl alcohol). Should enough ethanol be produced, you get drunk. Id. Brewer’s yeast is found in many different types of foods like breads, wine, and beer. Brewer’s yeast is also sold as a nutritional supplement due its high levels of selenium, protein, and B-complex vitamins. Unlike other types of baking yeasts, it’s high in chromium, an essential mineral that helps with maintaining our blood sugar levels. Excessive brewer’s yeast in your intestine can occur due to surgery as well. Sometimes after surgery, patients are given antibiotics to control their infection. Unfortunately, as a consequence of these antibiotics, some of the bacteria in the patient’s digestive tract are killed off. The resulting loss allows a growth of brewer’s yeast to take hold in the patient’s gut. See, Cordell and McCarthy, A Case Study of Gut Fermentation Syndrome (Auto-Brewery) with Saccharomyces cerevisiae as the Causative Organism, International Journal of Clinical Medicine, 309, 310 (2013), http://www.scirp.org/journal/PaperInformation.aspx?PaperID=33912#.VPBc5vnF_ZN. Have a few sandwiches and you can get drunk! It should be noted, however, that gut fermentation syndrome is mainly attributed to Asian and American Indian peoples. It's all about enzymes. When the liver processes ethanol, the enzyme alcohol dehydrogenase first converts it to acetaldehyde. In most people a second enzyme, aldehyde dehydrogenase (ALDH), quickly converts the acetaldehyde to harmless acetate. But roughly 50 percent of Japanese and other East Asians and some American Indians (but practically no Europeans or Africans) have a mutated gene that impairs ALDH activity. Due to the fact they have no ALDH, when they consume alcohol, or their bodies produce natural ethanol, it leaves them with a build up of acetaldehyde in their system. That excess causes numerous unwanted symptoms and can also produce more ethanol, thereby giving them a higher BAC than would normally be. There is a proposed clinical test for gut fermentation syndrome. A patient is given a fasting glucose challenge of 5 Gm glucose orally. One gram of glucose is given in a hardened gelatin capsule to ensure passage into the duodenum. Blood glucose levels and blood ethanol levels were measured at 1 hour. Fasting blood alcohol levels were zero in nearly all subjects but 61% of the 510 subjects showed an increase in blood alcohol levels on the average of 2.5 mg/dl (range 1.0 - 7.0 mg/dl). This compared to near zero blood alcohol levels in the control group given the same challenge. The phenomenon of gut fermentation was summarized with the above proposed diagnostic method. K. Eaton, “Gut Fermentation: A Reappraisal of an Old Clinical Condition with Diagnostic Tests and Management: Discussion Paper,” Journal of the Royal Society of Medicine, Vol. 84, No. 11, 1991, pp. 669-671. In the prosecution of OWI/DUI cases, the concentration of ethanol in blood, breath or urine because of drinking alcohol constitutes important evidence for prosecuting drunk drivers. But what if the reliability of the results of forensic alcohol analysis are often challenged by body brewing its own alcohol?. One such argument for acquittal concerns the notion that alcohol could be produced not by drinking alcohol but because the person had eaten food and was suffering from auto-brewery syndrome.

What has been demonstrated here is that usually only one factor determines whether a defendant stays in jail before he comes to trial. That factor is not guilt or innocence. It is not the nature of the crime. It is not the character of the defendant. That factor is, simply, money. How much money does the defendant have?”—U.S. Attorney General Robert KennedyThe U.S. Supreme Court has affrmed the pretrial process as “perhaps the most critical period of the proceedings”, United States v. Wade, 388 U.S. 218 (1967) so the impact of ability to post bail during this time is of particular importance. On any given day, 60 percent of the U.S. jail population is composed of people who are not convicted but are being held in detention as they await the resolution of their charge. This time in detention hinders them from taking care of their families, jobs and communities while overcrowding jails and creating unsustainable budgets. In 2011, detaining people in county jails until their court dates was costing counties, alone, around $9 billion a year. Eric Holder, “Attorney General Eric Holder Speaks at the National Symposium on Pretrial Justice,” June 1, 2011, U.S. Department of Justice, http://www.justice.gov/iso/opa/ag/speeches/2011/ag-speech-110601.html. This incarceration of pretrial defendants without any determination of their guilt impacts poor people the most. A Bureau of Justice Statistics survey of felony cases in the 75 most populous counties of the U.S. showed that average bail amounts have increased by over $30,000 between 1992 and 2006, Felony Defendants in Large Urban Counties reports,1992-2006, posing a serious concern for indigent populations involved in the criminal justice system. Average amounts for those detained until their hearing more than doubled from an average bail of $40,000 in 1992 to $90,000 in 2006. The proportion of felony cases assigned bail under $5,000 decreased by nearly 15 percentage points from 1998 to 2006; and the percent of cases with amounts from $5,000 to $24,999 has remained relatively stable. Not only do high bail amounts pose a threat to constitutional rights to liberty pretrial, but they are believed to put low income populations at a disadvantage when facing plea bargains: people may feel pressured to plead guilty as remaining in jail has such significant negative consequences, such as losing a job or not being available to take care of a dependent. Michelle Alexander, “Go to Trial: Crash the Justice System.” Opinion article, The New York Times (2012) http://www.nytimes.com/2012/03/11/opinion/sunday/go-to-trial-crash-the-justice-system.html?_r=0 The role of finances in this equation violates the Equal Protection Clause. Jonathan Zweig, “Extraordinary Conditions of Release Under the Bail Reform Act,” 47 Harvard Journal on Legislation 556 (2010). Cash bail is a source of unequal treatment of defendants. The cash-based charge-governed system institutionalizes economic discrimination against the poor. A person's ability to afford cash bail, a reflection of economic background, is unrelated to determining the likelihood that he or she will fail to attend court. Unfortunately, because of the economic basis of cash-based pretrial release, at least in most urban settings, racial bias is also a result. African Americans and other minorities, who disproportionately are numbered among the poorest of the poor, also disproportionately fill the jails as pretrial detainees. A recent study looked at how race affects extralegal factors, such as education and financial support, which then affect legal factors, such as prior record and severity of charge. Together these factors influence pretrial decisions and outcomes. The study revealed correlations between race and all pretrial outcomes analyzed, concluding that “each correlation indicated harsher treatment for African Americans.”John Wooldredge, “Distinguishing Race Effects on Pre-Trial Release and Sentencing Decisions,” 29 Justice Quarterly,41-75, 54(2012).The results showed that: • African Americans were less likely to be released on their own recognizance than white defendants. Id. • African Americans ages 18 through 29 received significantly higher bail amounts than all other types of defendants. Id Although the study did not show “race” directly predicting pretrial decisions, the relationship or “interaction” between race and other factors, such as age, gender, and socioeconomic status, was what directly impacted pretrial decisions. Act to minimize threats to the constitutional rights you or someone you care about have by the imposition of high cash by retaining Paul A. Ksicinski who has over 23 years of experience in defending people charged with all types of criminal offenses.